United States v. Sposito

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1755

UNITED STATES,

Appellee,

v.

MICHAEL SPOSITO,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Torruella, Chief Judge,

Coffin and Campbell, Senior Circuit Judges.

Seth M. Kalberg, by appointment of the Court, for appellant.

Cynthia A. Young, Attorney, U.S. Department of Justice, with

whom Donald K. Stern, United States Attorney, Ernest S. DiNisco

and James D. Herbert, Assistant United States Attorneys, were on

brief for appellee.

February 18, 1997

TORRUELLA, Chief Judge. Defendant-appellant Michael
TORRUELLA, Chief Judge.

Sposito was convicted of illegal gambling and aiding and abetting

illegal gambling in violation of 18 U.S.C. 1955. He now

appeals the district court's denial of his motion to dismiss for

violation of the Speedy Trial Act ("STA"), 18 U.S.C. 3161-

3167, and the district court's admission into evidence of the

prior immunized testimony of Louis Padova under the residual

exception to the hearsay rule.

I. The Speedy Trial Act
I. The Speedy Trial Act

A. Standard of Review
A. Standard of Review

In reviewing an STA ruling, we examine factual

questions under a clear error standard and legal determinations

de novo. See United States v. Rodr guez, 63 F.3d 1159, 1162 (1st

Cir.), cert. denied, 116 S. Ct. 681 (1995).

B. The Legal Framework
B. The Legal Framework

At issue is 18 U.S.C. 3161 et seq., which require

that:

the trial of a defendant charged in an
information or indictment with the
commission of an offense shall commence
within seventy days from the filing date
(and making public) of the information or
indictment, or from the date the
defendant has appeared before a judicial
officer of the court in which such charge
is pending, whatever date last occurs.

18 U.S.C. 3161(c)(1); see also Henderson v. United States, 476

U.S. 321, 322 (1986). If the defendant is not brought to trial

within the seventy day time period, "the information or

indictment shall be dismissed on motion of the defendant." 18

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U.S.C. 3162(a)(2); see Rodr guez, 63 F.3d at 1162. Not every

day between the indictment or appearance and the start of trial

is counted, however. Section 3161(h) provides a list of

circumstances in which the STA is tolled.

The question before us, therefore, is whether seventy

countable days passed between the indictment of Sposito on

April 13, 1994, and the start of the trial on January 17, 1995.

There are several periods of time in dispute, but we need only

consider the last of these -- from December 1, 1994 to January

13, 1995.1 Defendant states that 41 countable days passed prior

to December 1, 1994. Because we find that there were no

countable days from December 1, 1994 to January 13, 1995,

defendant's claim under the STA must fail, regardless of how we

would rule on the earlier periods.

On November 30, 1994, the previously scheduled trial

date of December 12 was postponed indefinitely. At that time,

the government's motion in limine to restrict the cross-

examination of certain law enforcement witnesses, filed on

November 8, was pending. The motion in limine was eventually

heard during the trial, with argument on the motion taking place

on January 31, 1995. We must decide whether the motion in limine

tolled the STA clock from November 8 to January 13.

Three principal sources of authority frame our

decision. First, there is the statute, which requires that

1 Although the trial started on January 17, the parties agree
that the filing of the January 13 motion to dismiss for violation
of the STA tolled the STA clock.

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"delay resulting from any pretrial motion, from the filing of the

motion through the conclusion of the hearing on, or other prompt

disposition of, such motion" be excluded from the time counted

against the STA. 18 U.S.C. 3161(h)(1)(F). Congress chose not

to include any explicit exceptions in the statutory language.

Yet Congress was conscious of the possible need for more flexible

exclusion requirements, as demonstrated by other parts of the

statute. For example, in section 3161(h)(8)(A), the Act excludes

periods of delay resulting from a continuance, but only when the

trial court sets forth, in the record, its reasons for finding

that "the ends of justice served by taking such action outweigh

the best interest of the public and the defendant in a speedy

trial." 18 U.S.C. 3161(h)(8)(A).

Second, in Henderson v. United States, 476 U.S. 321,

327 (1986), the Supreme Court held that "Congress intended

subsection (F) to exclude from the Speedy Trial Act's 70-day

limitation all time between the filing of a motion and the

conclusion of the hearing on that motion, whether or not a delay

in holding that hearing is 'reasonably necessary.'" Id. In

Henderson, a motion to suppress was filed on November 3, 1980,

and a hearing was held on March 25, 1981, at which the trial

court "declined to reach a final decision because it needed

further information. The court did not receive all filings in

connection with the motion until December 15, 1981." Id. at 332

(citations omitted). The Court excluded all of this time under

section 3161(h)(8)(F). Id.

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Finally, we are bound by our own ruling in United

States v. Rojo-Alvarez, 944 F.2d 959 (1st Cir. 1991). In Rojo-

Alvarez, the government filed a motion in limine on March 8,

1990. On April 5, 1990, the district court reserved ruling on

the merits of the motion until trial. On appeal, this court

stated that:

[w]e do not believe that a court should
put off consideration of a motion and
exclude the time during which the motion
lies dormant. However, when the court is
presented with papers styled as a motion,
whether it ultimately determines that the
filing is a pretrial motion or an 'other
proceeding' under (J), the court is
entitled to exclude at least the period
of time during which it considers how to
treat the filing.

Id. at 966. The court in Rojo-Alvarez disposed of the case by

excluding the time between the filing of the motion and the date

upon which it was reserved. The panel's language regarding the

time a motion lies dormant did not affect the outcome of the

case.2

In the instant case, the government filed its motion in

limine on November 8, 1994. As an initial matter, motions in

2 Cf. United States v. Clymer, 25 F.3d 824, 829-30 (9th Cir.

1994) (finding that time after the district court explicitly
postponed ruling on the relevant motion until after the trial
must be counted against the STA clock); United States v. Gambino,

59 F.3d 353, 357-59 (2d Cir. 1995) (ruling that the STA clock is
"not tolled when the postponement of a pretrial motion until
after trial does not effect a trial court's ability to proceed"),
cert. denied, 116 S. Ct. 1671 (1996). But see United States v.

Riley, 991 F.2d 120, 123 (4th Cir. 1993) (ruling that when a

hearing on a pretrial motion is deferred until after trial, all
of the time from the filing of the motion until its disposition
is excluded).

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limine are "pretrial motions" for the purposes of section

3161(h)(1)(F), implying that the filing of such a motion tolls

the STA clock. See id.; see also United States v. Santoyo, 890

F.2d 726, 728 (5th Cir. 1989); United States v. Johnson, 32 F.3d

304, 306 (7th Cir. 1994). The motion was not heard until January

31, 1995, well after the start of trial. Between the filing of

the motion and the trial date, the court made no mention of the

motion in limine. Specifically, it did not, at any time, state

that it considered the motion "dormant."

Defendant-appellant contends that the district court

implicitly relegated the motion to dormant status when it

postponed the trial indefinitely. He argues that "[u]pon the

issuance by the Court on November 30 of the Notice cancelling the

December 12 trial date without the setting of a new trial date,

and because of that Notice, it was then apparent that the Court's

other business and or convenience had put the Sposito case on

hold." Appellant's Brief at 25. Appellant then appeals to Rojo-

Alvarez for the proposition that time during which motions lie

dormant is to be counted against the STA clock.

We disagree with appellant's claim. In our view, the

motion was never relegated to dormant status for STA purposes.

The order postponing the trial read, in its entirety, "[t]he

trial scheduled to begin December 12, 1994 has been canceled. It

will be rescheduled for a future date to be advised." District

Court Order of Cancellation, November 30, 1994. No reason was

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given for the postponement and there was no suggestion that the

motion in limine had been reserved until trial.3

To find that the motion was dormant, therefore, we

would have to rely on speculative inferences about the statements

and actions of the lower court. We decline to do so. We are

unwilling to adopt the position that appellate courts should sit

in review of the day-to-day operation of district courts in order

to determine when a district court's decision to put off

consideration of a motion makes that motion "dormant" and when it

does not. District courts are busy and must constantly make

scheduling decisions with respect to the many matters for which

they are responsible. We are ill equipped to second guess these

decisions. There is no reliable way for an appellate court to

divine the intent of the district court with respect to a

particular motion or its docket in general. Rather than open the

door to appeals that ask this court to read the tea leaves of a

trial's scheduling orders, we will only look to the explicit

statements of the lower court.

Our ruling today is also based on our interpretation of

the STA and Henderson. On the one hand, neither of these sources

suggests that dormant motions fail to trigger excludable time

3 Appellant also points to the district court's remarks, made on
the first day of trial, in which the court referred to the motion
in limine, stating, "I have been planning to have a hearing on
that in connection with the trial . . . . I think holding the
motion to resolve once I have found that there was not going to
be a plea, and apparently there won't be, is consistent with
[Henderson]." However one may interpret these remarks, they do

not amount to an explicit relegation of the motion in limine to
dormant status.

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under subsection (F). On the other hand, we recognize that there

may be sound policy reasons for an exception to subsection (F) in

the case of dormant motions. Because the statute does not itself

create such an exception, however, and because Henderson held

that even unreasonable delays shall be excluded, any exception

for dormant motions should at the very least be drawn narrowly.

We do not believe that an exception for motions deemed, by an

appellate court, to have been dormant, without any explicit

indication to that effect by the district court, would be

consistent with the strong language of the STA and Henderson.

Furthermore, from the point of view of an appellate

court, there does not appear to be a principled distinction

between a motion that is dormant and one for which the period of

delay prior to hearing is unreasonable. In other words, finding

a motion to have been dormant without any language to that effect

in the record will often be similar to concluding that there has

been unreasonable delay. Henderson has established that all

delay, even if unreasonable, is excluded. To count time against

the STA clock on the ground that the motion was implicitly

relegated to dormant status, therefore, would be contrary to the

spirit of Henderson.

We hasten to add that this opinion should not be taken

either to criticize or to support the language in Rojo-Alvarez

concerning dormant motions. See Rojo-Alvarez, 944 F.2d at 966.

Our holding only extends to the question of whether or not the

district court reserved ruling on the motion or otherwise

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relegated the motion to dormant status. We do not comment in any

way on the implications, for Speedy Trial Act purposes, of an

explicit ruling that a motion is dormant or that the court will

reserve ruling on the motion.

As a result of our ruling, the 43 days from December 1

to January 13 are not counted for STA purposes. In light of the

fact that appellant claims only 41 days were counted against the

STA clock prior to December 1994, our finding implies that we

must affirm the district court's ruling on the STA issue.

II. The Admission of Evidence Claim
II. The Admission of Evidence Claim

Defendant-appellant next alleges that the district

court erred in admitting into evidence the prior testimony of

Louis Padova. Padova had testified in October 1992, under a

compulsion and immunity order, at the trial of Arthur Marder, who

was accused of illegal gambling. At Marder's trial, Padova

testified that Marder had told him that he was paying everyone --

the implication being that Marder paid off local Revere

politicians in order to protect his illegal video poker business.

It was alleged that these payments were made via Sposito.

At Sposito's trial, Padova refused to testify, even

with immunity, and was found in contempt. The government moved

to admit Padova's testimony from the prior Marder trial. The

district court found Padova to be unavailable within the meaning

of Federal Rule of Evidence 804(a)(2) and found the previous

testimony to be admissible under Federal Rule of Evidence

804(b)(5). Appellant contests the Rule 804(b)(5) ruling.

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The proper interpretation of the Federal Rules of

Evidence is a question of law and is reviewed de novo, see Texaco

Puerto Rico v. Department of Consumer Affairs, 60 F.3d 867, 874-

75 (1st Cir. 1995); Hathaway v. Coughlin, 99 F.3d 550, 555 (2d

Cir. 1996); United States v. Medina-Estrada, 81 F.3d 981, 986

(10th Cir. 1996), but the application of Rule 804(b)(5) is

reviewed under an abuse-of-discretion standard. See Cook v.

United States, 904 F.2d 107, 111 (1st Cir. 1990).

In ruling on the question, the district court found

"that the testimony relates to a material fact whether Arthur

Marder was indeed paying off politicians to obtain protection for

his video poker machine business in Revere. If that fact is

proven, it increases the likelihood that he was paying off those

politicians through Mr. Sposito." 2/7 Tr. 15. The court also

found that "the testimony of Padova is more probative on the

point of what Arthur Marder said to Padova than any other

testimony the Government can procure." 2/7 Tr. 16.

Rule 804(b)(5) requires that:

(A) the statement is offered as evidence
of a material fact;

(B) the statement is more probative on
the point for which it is offered than
any other evidence which the proponent
can procure through reasonable efforts;
and

(C) the general purposes of these rules
and the interests of justice will best be
served by admission of the statement into
evidence.

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Fed. R. Evid. 804(b)(5)(A), (B), (C).4 Reading the first two

subparagraphs together, defendant argues, requires that (B) be

read as if it included the words "of material fact" after the

word "point." Thus, the defendant alleges that the district

court erred by not directing its inquiry to the "question of

whether Marder's statement to Padova was more probative on the

issue of whether Marder was paying off politicians than any other

available testimony." Appellant's Brief at 35.

Before proceeding, we note that defendant's argument

rests on the assumption that the question of what Marder said to

Padova is not a material fact. If it is a material fact,

Padova's testimony would be admissible, even under defendant's

preferred interpretation of the rule. To conclude, as defendant

does, that the question of whether Marder was paying politicians

is material fact and yet the fact that he stated as much to

Padova is not a material fact is an exceedingly fine distinction,

and not one upon which the question of admissibility should turn.

The relationship between subparagraphs (A) and (B) of

Rule 804(b)(5) appears to be a matter of first impression within

the circuit. We begin, as always, with an examination of the

plain language of the rule. Subsection (B) requires only that

the statement be more probative on "the point for which it is

offered." The subparagraph does not include the words "of

material fact" as advocated by defendant. The drafters of Rule

4 In addition to these requirements, the statement must also
have "equivalent guarantees of trustworthiness." Fed. R. Evid.
804(b)(5).

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804(b)(5) separated the "material fact" element of the test found

in subparagraph (A) from the "more probative" element of

subparagraph (B). Were the rule intended to have the meaning

advocated by defendant, it could have been written with much

greater clarity. Had the drafters wanted to include the words

"of material fact" following the word "point" in subparagraph (B)

they obviously could have done so. Furthermore, by doing so,

they would have eliminated the need for subparagraph (A) because

the necessity of a material fact would be explicit in the revised

subparagraph (B). As written, however, the plain language of the

rule does not require that the issue on which the statement is

most probative be a material fact; it requires only that it be

probative on the point "for which it is offered." Fed. R. Evid.

804(b)(5)(B).

Furthermore, subparagraph (A) requires only that the

statement be offered as evidence of a material fact. It need not

itself be a material fact. If we were to import language from

subparagraph (A) to subparagraph (B), it would be more natural to

add the words "of evidence" after the word "point," such that (B)

read, "the statement is more probative on the point of evidence

for which it is offered than any other evidence." Under this

interpretation, appellant's claim would fail. The district court

established that the statement was offered as evidence of the

fact that Marder was paying off politicians and that the latter

was a point of material fact. The statement is more probative on

that point of evidence -- what Marder told Padova -- than any

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other evidence that the government could procure through

reasonable efforts.

Defendant, perhaps recognizing that the language of the

rule is not favorable to his argument, turns to legislative

history. He points to language in the Senate Report to the

effect that the residual hearsay exception should be used rarely.

S. Rep. No. 1277, 93d Cong., 2nd Sess. (1974). Our own

examination of the legislative history, however, reveals that the

inclusion of the residual hearsay exception was intended for

cases, such as the one before us, that "have guarantees of

trustworthiness equivalent to or exceeding the guarantees

reflected by the [other Rule 804(b)] exceptions, and to have a

high degree of prolativeness [sic]." Id.

In order to illustrate the type of evidence that the

Senate Committee felt should be admitted but that may not fall

within one of the other hearsay exceptions, the Senate Report

cited Dallas County v. Commercial Union Assurance Company, 286

F.2d 388 (5th Cir. 1961). S. Rep. No. 1277. At issue in that

case was the cause of the collapse of the Dallas County Courtroom

clock tower. Insurance investigators believed that it collapsed

due to structural defects. Dallas County believed that the tower

collapsed as a result of being struck by a bolt of lightning. In

support of its position, the County introduced into evidence,

among other things, charcoal and charred timbers found in the

tower debris. Id. at 390. In order to rebut this evidence, the

insurers sought to introduce a newspaper article from 1901

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describing a fire that had occurred in the courtroom in that

year. The court admitted the evidence despite the fact that it

was not characterized "as a 'business record', nor as an 'ancient

document', nor as any other readily identifiable and happily

tagged species of hearsay exception." Id. at 398.

The Senate Report stated that "[b]ecause exceptional

cases like the Dallas County case may arise in the future, the

committee has decided to reinstate a residual exception for rules

803 and 804(b)." S. Rep. No. 1277.

Under defendant's construction of the residual hearsay

exception, however, the newspaper article in Dallas County would

not be admissible. The newspaper article was introduced as

evidence of the material fact that the charred timbers were the

result of a fire that took place more than fifty years prior to

the case. The newspaper story did not, however, go directly to

the question of why the charred timbers were in the tower, it

only went to the fact that there had been a fire in 1901. The

story was not more probative on the point of why the timbers were

charred than any other evidence. It was, however, more probative

than any other evidence that the insurers could provide on the

question of whether there had been a fire.

Just as in the case at bar, therefore, a requirement

that the statement be more probative on the point of material

fact than other available evidence would exclude the evidence in

question. This is certainly not what the Senate Committee, which

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used the Dallas County case as an example of evidence that was

correctly admitted, intended.

Finally, we turn to the policies served by the residual

hearsay exception. These can be summarized as follows:

1. To provide sufficient flexibility to
permit the courts to deal with new and
unanticipated situations.

2. To preserve the integrity of the
specifically enumerated exceptions.

3. To facilitate the basic purpose of
the Federal Rules of Evidence: truth
ascertainment and fair adjudication of
controversies.

11 Moore's Federal Practice 803(24)[7] (2d ed. 1994 & Supp.

1996-97). It is our view that these objectives are best served

by rejecting defendant's proposed construction of 804(b)(5). The

defendant's proposed interpretation would needlessly reduce the

flexibility available to courts dealing with new and

unanticipated situations. By excluding evidence that has, as

required by 804(b)(5), "equivalent circumstantial guarantees of

trustworthiness," defendant's proposed interpretation would also

make truth ascertainment and the fair adjudication of justice

unnecessarily difficult.

For the above reasons, we decline to adopt the

defendant's reading of subparagraphs (A) and (B), and we conclude

that the district court did not err, as a matter of law, in its

interpretation of Rule 804(b)(5)(B).

We examine the district court's application of the

rule. Defendant-appellant claims that the admission of Padova's

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testimony was erroneous because the district court failed to

analyze each part of the testimony in order to determine each

part's reliability. In support of his claim, defendant cites

Williamson v. United States, 512 U.S. 594, 114 S. Ct. 2431

(1994), in which the Supreme Court ruled that, for the purposes

of Rule 804(b)(3), which governs statements against interest, the

word "statement" refers to a single remark. "The district court

may not just assume for purposes of Rule 804(b)(3) that a

statement is self-inculpatory because it is part of a fuller

confession." Williamson, 512 U.S. at , 114 S. Ct. at 2435.

Defendant would have us apply the same definition of "statement"

to Rule 804(b)(5) and, under such a definition, he argues that

the district court failed to analyze each part of the testimony.

We note initially that defendant failed to raise this

issue at trial. Arguments raised for the first time on appeal

are forfeited and reversible only upon a demonstration of "plain

error." United States v. Sullivan, 98 F.3d 686, 687 (1st Cir.

1996). "Under this standard, an appellant bears the burden of

establishing: (1) 'error,' i.e., a '[d]eviation from a legal

rule'; (2) that the error is 'plain' or 'obvious'; and (3) that

the plain error affected 'substantial rights.'" United States v.

Winter, 70 F.3d 655 (1st Cir. 1995) (quoting United States v.

Olano, 507 U.S. 725, 732 (1993)), cert. denied, 116 S. Ct. 1366

(1996); Fed. R. Crim. Proc. 52(b).

This circuit has not yet determined whether the

definition of "statement" adopted for Rule 804(b)(3) in

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Williamson also applies to Rule 804(b)(5).5 We need not make

this determination in the instant case, because defendant's claim

fails regardless. If Williamson's definition of "statement" does

not apply, defendant's claim is without merit because we find no

plain error in the district court's review of the testimony as a

whole -- viewing it as a single statement -- and its

determination that the requirements of Rule 804(b)(5) were

satisfied. The district court concluded that the testimony

included adequate guarantees of trustworthiness because it was

given under oath, because Padova was immunized, because he

testified upon personal knowledge, and because he was vigorously

cross-examined by defense counsel in the Marder trial.6 These

indicia of reliability are sufficient to establish that the

district court's conclusion that the testimony was reliable was

not plain error. The district court also found subparagraphs (A)

through (C) satisfied, and we find no plain error in its

analysis.7

5 But see United States v. Canan, 48 F.3d 954, 960 (6th Cir.

1995) ("[T]he term 'statement' must mean 'a single declaration or
remark' for purposes of all of the hearsay rules."), cert.

denied, 116 S. Ct. 716 (1996).

6 Defendant accurately points out that testifying under immunity
is not always considered an indicator of truthfulness. See,

e.g., United States v. Zanino, 895 F.2d 1, 7 (1st Cir. 1990). It

is not for us, however, to conduct a plenary review of the
district court's determination regarding the reliability of the
testimony or to review every factor considered by the district
court. The fact that the trial judge felt immunity bolstered the
credibility of the testimony does not amount to plain error.

7 Appellant alleges that the district court examined only a
small part of Padova's testimony and improperly admitted the
remainder of the testimony. We find no support for this claim in

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If Williamson applies, our analysis becomes more

complicated. The district court does not appear to have engaged

in a sentence-by-sentence analysis of the testimony, as would be

required by Williamson. The indicators of reliability that the

district court used, however, are not specific to any portion of

the testimony and would apply to every statement therein,

implying that there is no error with respect to the reliability

of the testimony. Specifically, the district court stated that

"Mr. Padova testified at the Marder trial under oath, he was

immunized and, therefore, had an incentive to tell the truth in

order to avoid prosecution for perjury. He testified based upon

personal knowledge." The judge also noted that "he was

vigorously cross-examined by Mr. Duggan, the defense counsel."

Tr. 2/7 14-15.

Had the trial court conducted a sentence-by-sentence

analysis, therefore, it would have applied these same criteria to

every sentence and would have concluded that each one had

sufficient indicators of reliability. There was, therefore, no

plain error in the assessment of the reliability of the

testimony.

With respect to subparagraphs (A)-(C) of Rule

804(b)(5), however, not every sentence of the testimony is

admissible. For example, not every sentence in that testimony

the record. The transcripts of the proceedings indicate that the
district court considered the testimony as a whole in order to
determine whether the requirements of Rule 804(b)(5) were met.
Tr. 2/7 13-16.

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can be said to have been offered as evidence of a material fact.

For this reason, assuming, arguendo, that Williamson applies, the

district court's ruling was erroneous. The error was not,

however, "plain," as required by Winter. In order to be

considered plain, the error must be "so 'plain' that the trial

judge and prosecutor were derelict in countenancing it, even

absent the defendant's timely assistance in detecting it."

United States v. Frady, 456 U.S. 152, 163 (1982). The error in

this case was not sufficiently clear as to rise to the level of a

plain error. The error, if it existed at all, turns on the

interpretation and application of Williamson to a case dealing

with a hearsay exception that was not implicated in Williamson.

No cases are on point in this circuit, and the issue was not

raised at trial.

Furthermore, even if we concluded that there was plain

error, the defendant still must show that the error affected

"substantial rights." In order to affect substantial rights, the

error "must have affected the outcome of the district court

proceedings." Olano, 507 U.S. at 734. The analysis is the same

as a "harmless error" analysis, except that "[i]t is the

defendant rather than the Government who bears the burden of

persuasion with respect to prejudice." Id. Defendant in the

instant case has failed to demonstrate that the error affected

the outcome of the proceedings. Indeed, defendant-appellant's

brief pursues only a harmful error argument and concludes that

"Padova's testimony . . . very well could have tipped the

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scales." Appellant's Brief at 44 (emphasis added). Even if we

were to agree with this assertion, it is not enough, under the

plain error standard, that the error could have changed the

outcome. We can find plain error only if the error must have

done so.

Finally, we address defendant's claim that Sposito's

counsel would have undertaken a more vigorous and extensive

cross-examination of Padova than did Marder's counsel. We do not

dispute that it would have been better to have Padova testify and

be subject to cross-examination. Given that he was not

available, a fact defendant does not dispute, the question is

whether his previous testimony should have been admitted. This

matter goes to the question of whether there were sufficient

guarantees of trustworthiness. As we have already discussed,

defendant has failed to persuade this court that the district

court's conclusion that such guarantees existed was plain error.

III. Conclusion
III. Conclusion

For the foregoing reasons, we affirm the district
affirm

court's rulings on the STA claim and the evidence claim.

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